from the this-is-bad dept

Well, this was not entirely unexpected at this point, but in the EU Parliament earlier today, they voted to end the open web and move to a future of a licensed-only web. It is not final yet, as the adopted version by the EU Parliament is different than the (even worse) version that was agreed to by the EU Council. The two will now need to iron out the differences and then there will be a final vote on whatever awful consolidated version they eventually come up with. There will be plenty to say on this in the coming weeks, months and years, but let's just summarize what has happened.

For nearly two decades, the legacy entertainment industries have always hated the nature of the open web. Their entire business models were based on being gatekeepers, and a "broadcast" world in which everything was licensed and curated was perfect for that. It allowed the gatekeepers to have ultimate control -- and with it the power to extract massive rents from actual creators (including taking control over their copyright). The open web changed much of that. By allowing anyone to publicize, distribute and sell works by themselves, directly to end users, the middlemen were no longer important.

The fundamental nature of the internet was that it was a communications medium rather than a broadcast medium, and as such it allowed for permissionless distribution of content and communication. This has always infuriated the legacy gatekeepers as it completely undermined the control and leverage they had over the market. If you look back at nearly every legal move by these gatekeepers over the last twenty five years concerning the internet, it has always been about trying to move the internet away from an open, permissionless system back towards one that was a closed, licensed, broadcast, curated one. There's historical precedence for this as well. It's the same thing that happened to radio a century ago.

For the most part, the old gatekeepers have not been able to succeed, but that changed today. The proposal adopted by the EU Parliament makes a major move towards ending the open web in the EU and moving to a licensed, curated one, which will limit innovation, harm creators, and only serve to empower the largest internet platforms and some legacy gatekeepers. As Julia Reda notes:

Today’s decision is a severe blow to the free and open internet. By endorsing new legal and technical limits on what we can post and share online, the European Parliament is putting corporate profits over freedom of speech and abandoning long-standing principles that made the internet what it is today.

The Parliament’s version of Article 13 (366 for, 297 against) seeks to make all but the smallest internet platforms liable for any copyright infringements committed by their users. This law leaves sites and apps no choice but to install error-prone upload filters. Anything we want to publish will need to first be approved by these filters, and perfectly legal content like parodies and memes will be caught in the crosshairs.

The adopted version of Article 11 (393 for, 279 against) allows only “individual words” of news articles to be reproduced for free, including in hyperlinks – closely following an existing German law. Five years after the ‘link tax’ came into force in Germany, no journalist or publisher has made an extra penny, startups in the news sector have had to shut down and courts have yet to clear up the legal uncertainty on exactly where to draw the line. The same quagmire will now repeat at the EU level – no argument has been made why it wouldn’t, apart from wishful thinking.

This is a dark day for the open internet in the EU... and around the world. Expect the same gatekeepers to use this move by the EU to put pressure on the US and lots of other countries around the world to "harmonize" and adopt similar standards in trade agreements.

I know that many authors, musicians, journalists and other content creators cheered this on, incorrectly thinking that was a blow to Google and would magically benefit them. But they should recognize just what they've supported. It is not a bill designed to help creators. It is a bill designed to prevent innovation, lock up paths for content creators to have alternatives, and force them back into the greedy, open arms of giant gatekeepers.

from the now-would-be-a-good-time-to-stop-it-happening dept

Yesterday, Mike took apart an extraordinarily weak attempt by the UK's music collection society, PRS for Music, to counter what it claimed were "myths" about the deeply-harmful Article 13 of the proposed EU Copyright Directive. On the same day, the Guardian published a letter from the PRS and related organizations entitled "How the EU can make the internet play fair with musicians". It is essentially a condensed version of the "myth-busting" article, and repeats many of the same fallacious arguments. It also contains some extremely telling passages that are worth highlighting for the insights that they provide into the copyright industries' thinking and ultimate goal. Here is the main thrust of the letter:

This is not about censorship of the internet, as the likes of Google and Facebook would have you believe. The primary focus of this legislation is concerned with whether or not the internet functions as a fair and efficient marketplace -- and currently it doesn't.

Once again, there is no attempt to demonstrate that Article 13 is not about censorship, merely an assertion that it isn't, together with the usual claim that it's all being orchestrated by big US Internet companies. The fact that over two-thirds of a million people have signed an online petition calling for the "censorship machine" of Article 13 to be stopped rather punctures that tired argument.

More interesting is the second sentence, which essentially confirms that for the recording industry, the Copyright Directive -- and, indeed, the Internet itself -- is purely about getting as much money as possible. There is no sense that there are other important aspects -- like encouraging ordinary people to express themselves, and to be creative for the sheer joy of creating, or in order to amuse and engage with friends and strangers. The fact that all these non-commercial uses will be adversely affected by Article 13 is irrelevant to the recording industry, which seems to believe that making a profit takes precedence over everything else. However, even if they choose to ignore this side of the Internet, the signatories of the letter are well-aware that there is a huge backlash against the proposed law precisely because it is a threat to this kind of everyday online use. Attempting to counter this, they go on:

It is important to recognise that article 13 of the proposed EU copyright directive imposes no obligation on users. The obligations relate only to platforms and rightsholders. Contrary to some sensationalist headlines, internet memes will not be affected, as they are already covered by exceptions to copyright, and nothing in the proposed article will allow rightsholders to block the use of them.

Techdirt pointed out yesterday why the first part of that is intellectually dishonest. The Copyright Directive won't impose obligations on users directly, but on the platforms that people use, which amounts to the same thing in practice. The letter then trots out the claim that Internet memes will not be affected, and specifically says this is because they are already covered by EU exceptions to copyright.

Licensing is not an option here. There are many diverse sources for the material used in memes, most of which have no kind of organization that could give a license. The only way for online companies to comply with Article 13 would be to block all memes using any kind of pre-existing material in those 19 countries without a parody exception. Worse: because it will be hard to apply different censorship rules for each EU nation, it is likely that the upload filters will block all such memes in the whole EU, erring on the side of caution. It will then be up to the person whose meme has been censored to appeal against that decision, using an as-yet undefined appeals mechanism. The chilling effect this "guilty until proven innocent" approach will have on memes and much else is clear.

The blatant misinformation about whether memes would be blocked is bad enough. But in many ways, the most shocking phrase in the letter is the following:

Actually, article 13 makes it easier for users to create, post and share content online, as it requires platforms to get licences, and rightsholders to ensure these licences cover the acts of all individual users acting in a non-commercial capacity.

There, in black and white, is the end-game that the recording industry is seeking: that every online act of individual users, even the non-commercial ones, on the major platforms must be licensed. But the desire to control the online world, and to dictate who may do what there, is not limited to the recording companies: it's what all the copyright industries want. That can be seen in Article 11 of the Copyright Directive -- the so-called "snippet tax" -- which will require licensing for the use by online sites of even small excerpts of news material.

It's also at the root of the core problem with Article 3 of the proposed EU law. This section deals with the important new field of text and data mining (TDM), which takes existing texts and data, and seeks to extract new information by collating them and analyzing them using powerful computers. The current Copyright Directive text allows TDM to be carried out freely by non-profit research organisations, on material to which they have lawful access. However, companies must pay publishers for a new, additional, license to carry out TDM, even on material they have already licensed for traditional uses like reading. That short-sighted double-licensing approach pretty much guarantees that AI startups, which typically require frictionless access to large amounts of training data, won't choose to set up shop in the EU. But the publishing industry never cares about the collateral damage it inflicts, provided it attains its purely selfish goals.

Although it's rather breathtaking to see the copyright world openly admit that its ultimate aim is to turn the Internet into a space where everything is licensed, we shouldn't be surprised. Back in 2013, Techdirt wrote about the first stages of the EU's revision of its copyright law. One preliminary initiative was called "Licences for Europe", and its stated aim was to "explore the potential and limits of innovative licensing and technological solutions in making EU copyright law and practice fit for the digital age". What we are seeing now in the proposed Copyright Directive is simply a fulfillment of these ambitions, long-cherished by the copyright industries. If you aren't happy about that, now would be a good time to tell the EU Parliament to Save Your Internet. It may be your last chance.

from the you-can't-silence-people dept

By now, you've almost certainly heard about President Trump's multiple tweet attack on NBC for having a story he didn't like. A few times, Trump has suggested that NBC should "lose its license" because he doesn't like the company's reporting.

Separately, he said during a press conference the rather insane comment: "It's frankly disgusting the way the press is able to write whatever they want to write, and people should look into it." Again, the First Amendment is a big part of why the press is allowed to write whatever they want to write.

As plenty of people have pointed out -- including FCC Commissioner Jessica Rosenworcel -- this is not how it works... on multiple levels. First of all, NBC doesn't have a license that can be revoked. Local affiliates have the licenses, but that's different -- and those licenses are effectively impossible to revokebecause the system was set up to avoid situations like a President trying to censor a TV news station.

But there are some much larger issues here, and a big one is that merely having the President threaten to punish a news organization itself may very well be a First Amendment violation. Now, some people will argue that Trump has his own First Amendment rights to whine about anyone he wants... but courts have already noted that if done as part of their role as a government official, that power is limited. Back in 2015, for example, we wrote about a fantastic 7th Circuit ruling by Judge Richard Posner in which he slammed Cook County Sheriff Thomas Dart for using his position to threaten payment companies into not working with Backpage.com.

Posner lays out, in great detail, how a government official, making threats, can violate the First Amendment.

“The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive .... What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.”

And this:

The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands....

Posner also dispenses with the argument that a person is free to say what he wants here, noting that when he speaks, he's using his position in the government to enforce silencing of speech.

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.”... A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.”

And to make the point even clearer on where the line is drawn:

Sheriff Dart has a First Amendment right to publicly criticize the credit card companies for any connection to illegal activity, as long as he stops short of threats”

Trump has complained about news stations in the past -- and that's his right. But when he threatens to silence them by pulling their license (even if that's impossible) he is now directly using the power of government to threaten someone for protected expression. That's... violating the Constitution that the President has taken an oath to uphold.

Of course, that's just a recent 7th Circuit ruling. There are other circuits with similar rulings, such as the 2nd Circuit's Okwedy v. Molinari case, in which the court found that Staten Island Borough President sent a letter to a billboard company to complain about some billboards with anti-gay bible verses. In that case, amazingly, there wasn't even a real threat of action -- just a letter which called the billboards "unnecessarily confrontational and offensive" and said that "this message conveys an atmosphere of intolerance which is not welcome in the Borough." There was no direct legal threat, even, just a request to discuss and to act "as a responsible member of the business community." In that case, the court found that even without the explicit threat, it was a First Amendment violation:

Thus, the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff's message, is not necessarily dispositive in a case such as this. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

That could certainly apply to Trump's statements.

There are some Supreme Court cases that are on point as well. The most famous is the classic 1963 free speech case Bantam Books v. Sullivan. In that case, the Supreme Court found that a Rhode Island commission focused on stamping out obscene/indecent/impure images and language in publications was unconstitutional. The Commission didn't have the direct power to censor -- but rather would create lists of items the majority of the Commissioners deemed objectionable, and then (1) notify the publisher, (2) notify retailers and (3) pass along a recommendation of prosecution. The state argued that since there was no direct power to censor, there was no First Amendment violation. The court disagreed, noting that mere intimidation was violating the First Amendment rights of the publishers.

It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was "free" to ignore the Commission's notices, in the sense that his refusal to "cooperate" would have violated no law. But it was found as a fact—and the finding, being amply supported by the record, binds us— that Silverstein's compliance with the Commission's directives was not voluntary. People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around, and Silverstein's reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore. It would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity

In short, there's a pretty broad range of case law both at the appeals court level and at the Supreme Court saying that merely threatening action to suppress protected speech is, in fact, a First Amendment violation. Would NBC actually have the guts to sue over this? That's much harder to say -- but it sure would make for an interesting case.

A lawsuit in the United Kingdom is raising questions about fair use and copyright laws after a freelance photographer sued a news publication for embedding a tweet within an article. Eddie Mitchell, a freelance photographer, is taking Sky News to court after the publication used a tweet containing his photo within an article. Mitchell gave permission to the original tweeter, the Station 43 Midhurst Fire Department, but said the news organization did not have permission to use the photo.

The news organization defended its actions (even though it really didn't need to) by pointing out it had only embedded a tweet from a government agency, assuming the rights to the photo belonged to the fire department. When notified this wasn't the case, the tweet was immediately removed from the story.

Embedding a tweet shouldn't trigger a courtroom debate over fair use or copyright law. (And, despite this article's belief otherwise, there are no "fair use" protections to be discussed in the UK. The UK has "fair dealing," which is somewhat the same, but contains fewer protections than the American version.) A public tweet is fair game for any news organization, no matter what it contains. If someone is tweeting out another person's intellectual property (photo, video, etc.), the onus is on the person tweeting this to ensure the legitimacy of the content's origin.

Embedding a tweet should raise no further legal issues than simply retweeting a tweet. No one needs to ask anyone's permission to retweet a tweet. Embedding a tweet shows everything contained in the original tweet, including the originating account and any activity related to the tweet. It changes nothing and, in fact, does not completely reside on the page where it's embedded. At no time does the content included in the tweet change hands. It's never in possession of the entity that embeds the tweet, not even as a temporary file. If the original use -- the fire department's tweet -- wasn't infringing, embedding the fire department's tweet at another site doesn't magically change it into infringement.

And yet, we have a lawsuit -- and the potential, however small, for the court to side with someone who's clearly in the wrong. Based on what's been reported, it appears the real issue here is the fact that Sky News didn't immediately turn around and cut the photographer a check.

Sky News immediately removed the tweet in question, but Mitchell is suing because the publication refused to pay for the use of that embedded image.

“They did not make any attempt via social media or the services 24/7 control to ask permission to use the said picture/tweet, Sky News took it for granted that all crown pictures are free to use and therefore did.

“If they had asked West Sussex Fire and Rescue control or firefighter who tweeted it, they would have told it was not their copyright to grant such use.”

Once again, no one needs to ask permission before embedding a tweet. And there's no obligation, morally, legally or otherwise, for embedders to perform some sort of IP due diligence before embedding a tweet. The photographer's insistence that he's been wronged appears to be entirely based on his subjective reaction to the chain of events, rather than any legal precedent or UK copyright protections. Despite being asked for comment several times, he's come up with nothing better than Sky News should have asked his permission to embed a tweet from a government account. And by "ask permission," he means "pay up."

It's tough to imagine this lawsuit will go far, even when lobbed into a court system of a nation with slightly different views on intellectual property protections. It makes about as much sense as suing Twitter for allowing third parties to interact with public tweets by retweeting or embedding them. In other words, none. Hopefully the UK court will toss this suit before it becomes a nuisance to Sky News, Twitter, or the general idea of sharing publicly-available social media posts.

from the but-might-that-prove-a-mixed-blessing? dept

Free software dominates modern computing, from smartphones to supercomputers -- only the desktop remains a stronghold of proprietary code. Most of that free software has the Linux kernel at its heart, and a key element in the success of Linux -- and of thousands of other coding projects -- is the GNU General Public License. Although the first version of the GNU GPL was released by Richard Stallman back in 1989, and version 3 was issued in 2007, there have been surprisingly few court cases examining it and other open source licenses, and whether they are legally watertight.

A key case is Jacobsen v. Katzer from 2008. As a detailed Groklaw post at the time explained, the US appeals court held that open source license conditions are enforceable as a copyright condition. Now we have another important judgment, Artifex v. Hancom, that clarifies further the legal basis of open source licenses. It concerns the well-known Ghostscript interpreter for the PostScript language, written originally by L. Peter Deutsch, and sold by the company he founded, Artifex Software. Artifex was a pioneer in adopting a dual-licensing approach for Ghostscript. That is, you could either use the software under the GNU GPL, or you could avoid copyleft's redistribution requirements by taking out a conventional proprietary license.

Hancom is a South Korean company that produces Hangul, word-processing software that is primarily used in South Korea as an alternative to Microsoft Word. Artifex says that Hancom incorporated Ghostscript into its Hangul software, but neither sought a proprietary license, nor complied with the terms of the GPL by releasing the source code for the application that incorporated Ghostscript. As a result, Artifex took legal action, alleging copyright infringement and breach of contract. Hancom asked the court to dismiss Artifex's complaint on several grounds, but they were all denied. The most significant ruling is on Hancom's claim that the GNU GPL was not a contract. In her order, embedded below, Judge Jacqueline Scott Corley wrote:

The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNU GPL. These allegations sufficiently plead the existence of a contract.

That's an important new ruling. The judge also affirmed a result of the Jacobsen v. Katzer case, that even though code released under the GPL is available free of charge, damages could still be awarded because:

there is harm which flows from a party's failure to comply with open source licensing.

Generally, copyright claims may afford plaintiffs more damages and stronger remedies than contract claims. However, contract claims may help a plaintiff pursue a violator's worldwide conduct in a way that jurisdictional limits on copyright claims might not allow. Breach of contract claims may also be able to address reputational harm and other indirect non-economic benefits that a plaintiff might derive from enforcing open source license conditions. A breach of contract claim might also, in certain instances, allow for specific performance of open source obligations.

However, the fact that Artifex may now proceed, drawing on both copyright and contract law, raises the important question of how those interact. Mike wrote about this back in 2010, and pointed to a longer discussion of the legal questions involved. The decision by the District Court for the Northern District of California to allow Artifex to move forward with its case is certainly an important confirmation of the legal solidity of open source licensing. But it also brings with it important questions about the role of contracts in the world of free software.

from the whatever's-the-most-profitable-terminology... dept

If you're a consumer, that piece of digital wordsmithery you purchased probably isn't worth the paper it isn't printed on. Like most digital media available for "purchase," ebooks are often "sold" as licenses that allow the publisher to control use of the product indefinitely, whether through DRM or by simply attaching EULAs no one will ever read to every download.

This works out great for publishers, who can make irrational, unilateral decisions to pull their catalogs from platforms as a "bargaining tool," leaving purchasers without access to their purchased goods. But publishers (including music publishers like UMG) only use the term "license" when it's most advantageous for them. When it comes to paying authors, the terminology suddenly changes. Now it's a "sale," with all the disadvantages for authors that entails.

"Sales" is a historical term, meant to reference physical sales and the additional costs (printing, packaging, shipping) built into the process. Licenses -- and the ebooks attached to them -- have none of these costs, hence the higher payout rate. But, according to a recently-filed lawsuit, Simon and Schuster is treating ebooks like physical sales in order to pay authors lower royalties.

The distinction is significant, because the royalty rate for sales is much lower than the rate for the license of rights. If categorized as a license the author receives 50% of net receipts, rather than 25% of net typically paid to authors for the "sale" of an eBook.

Jassin also points out that after Eminem's win over UMG on the sale/license issue (dealing with digital album/track sales), most publishers rewrote their contracts to make the screwing explicit.

In the wake of the Eminem decision, most publishers amended their contracts, so the sale or license of an "eBook" is unambiguously treated as a sale. The lawsuit, therefore, challenges the publisher's interpretation of their legacy or backlist contracts.

How much of this will hold up depends a lot on when contracts were rewritten. From the consumer end, "sold" ebooks certainly looked like licenses, at least up until S&S rewrote its terms of use. Up until January 2013, the terms of use contained this paragraph:

Subject to your strict compliance with these TOU, S&S grants you a limited, personal, non-exclusive, revocable, non-assignable and non-transferable license to view, use and/or play a single copy of the Materials and download one copy of the Materials on any single computer for your personal, non-commercial home use only, provided that you retain all trademark, copyright and other proprietary notices contained in the Materials. Modification of the Materials or use of the Materials for any other purpose is a violation of S&S's or its licensor's copyright, trademark and other proprietary rights. The use of any such Materials on any other web site or networked computer environment without S&S's express written consent is prohibited.

This paragraph disappeared shortly after that, suggesting some rewriting of policies occurred as a result of UMG's settlement with Eminem in late 2012. Due to the statute of limitations, the plaintiff will only be able to challenge the publisher's last six years of royalty payments, but as recently as three years ago, Simon & Schuster was "licensing" books to customers while telling authors every ebook was being "sold."

Then there's this issue, which may result in this particular author finding he has nothing to sue about (although other authors contracted by S&S might):

According to a report in Law360, an unnamed spokesman for Simon & Schuster told Law360 that the division that published Dr. Blau's book, was sold (or was it licensed?) to another company in 1998, and that the publisher never published a digital edition of the book.

So, even if Blau's general complaint is legitimate in terms of how S&S is using sales v. licenses to decrease its royalty payouts, his specific complaint may be completely baseless.

from the not-this-again dept

This seems to happen every year or so with tech companies that involve hosting photos: people totally misreading terms of service completely freak out that the company is claiming copyright on their photos. In 2011, it was Twitpic's new terms of service that everyone freaked out about. At the beginning of 2012, it was Pinterest. At the end of 2012, it was Instagram's new terms of service. In every case, it was kicked off by people who don't realize that these terms are pure boilerplate standard stuff that basically says, "if you use our platform, you're granting us a license to actually show your photos, so you don't then sue us for violating your copyright." There's nothing nefarious about this at all, but the freakout still occurs, and the media pushes it along.

This year's flavor of the exact same freakout is around Snapchat's new terms of service and, once again, the media has been stupidly pushing the story along, led by the Telegraph in the UK, which has an article suggesting its reporter has no clue what she's talking about. The terms of service are pure boilerplate, standard legal language that any site hosting photographs basically needs to have (which is why this same freakout happens every year or so with photo hosting sites). You can read the terms here. The key part that everyone is talking about is this:

Many of our Services let you create, upload, post, send, receive, and store content. When you do that, you retain whatever ownership rights in that content you had to begin with.

But you grant Snapchat a worldwide, perpetual, royalty-free, sublicensable, and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, create derivative works from, publicly perform, broadcast, distribute, syndicate, promote, exhibit, and publicly display that content in any form and in any and all media or distribution methods (now known or later developed). We will use this license for the limited purpose of operating, developing, providing, promoting, and improving the Services; researching and developing new ones; and making content submitted through the Services available to our business partners for syndication, broadcast, distribution, or publication outside the Services. Some Services offer you tools to control who can—and cannot—see your content under this license. For more information about how to tailor who can watch your content, please take a look at our privacy policy and support site.

To the extent it’s necessary, you also grant Snapchat and our business partners the unrestricted, worldwide, perpetual right and license to use your name, likeness, and voice in any and all media and distribution channels (now known or later developed) in connection with any Live Story or other crowd-sourced content you create, upload, post, send, or appear in. This means, among other things, that you will not be entitled to any compensation from Snapchat or our business partners if your name, likeness, or voice is conveyed through the Services.

Again, this is absolutely standard and there's nothing nefarious about this. The company is just covering its bases so that it's actually allowed to display your images/videos the way you want them to. It's not about doing something sneaky. It's about making sure that you are actually giving the site a license to display your stuff. In fact, right after the bolded stuff in the first paragraph, the terms make it clear that this is "for the limited purpose" of making Snapchat work -- and not for running off and doing other stuff with your photos and videos.

Nearly identical language can be found in nearly every such service that involves sharing information. Here's Pinterest's:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License).

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

When you provide Subscriber Content to Tumblr through the Services, you grant Tumblr a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), and create derivative works of, such Subscriber Content.

With regard to any file or content you upload to the public portions of our site, you grant Imgur a non-exclusive, royalty-free, perpetual, irrevocable worldwide license (with sublicense and assignment rights) to use, to display online and in any present or future media, to create derivative works of, to allow downloads of, and/or distribute any such file or content.

by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.

By submitting user content to reddit, you grant us a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, perform, or publicly display your user content in any medium and for any purpose, including commercial purposes, and to authorize others to do so.

I'm sure if you looked up any other similar service you'd find similar things. They need to get a license. And this is the language by which it's done. Some word it more broadly than others, and people seem to be focusing on Snapchat, in part, because of how it was mainly billed as a place to send quickly deleting photos/videos (though it's been making that a less and less prominent part of its business lately), and thus there's a fear that Snapchat will suddenly start "displaying" or otherwise sharing the images and videos you thought were being deleted. Of course, if the company actually did that, it would destroy its reputation.

Having read through all these terms of service, though, I will say that some of the other ones have done a much better job in trying to cut off such freakouts. Both Tumblr's and Twitter's include "plain English" explanations next to the legalistic paragraphs, explaining why there's this nutty language and why you shouldn't freak out about it. A few of them, such as Pinterest, put something directly in the terms that the reasons for this are "solely for the purpose of operating, developing, providing and using the Pinterest products," which makes it a little more clear what's going on.

It's reasonable to suggest that perhaps Snapchat and its legal team should have anticipated this situation, and done something like a few of the others in getting people not to freak out -- but, really, people appear to be totally overreacting. Indeed, if you actually read through Snapchat's terms, they do immediately make it clear that there are limited reasons why they need this license, and that they're still limited by their privacy policy.

In short: this is standard, boilerplate language that's more or less considered necessary for sites like these, and the people who are freaking out (including reporters) are totally overreacting.

from the free-advertising dept

This is apparently going to keep happening. A while back, we discussed the situation in which Donald Trump declared his candidacy for President (while making comments that torpedoed a bunch of his vaunted business interests) and used the music of Neil Young without the artist's permission. As I noted at the time, Trump was legally allowed to use the music, since the venue had paid the required ASCAP license, but failing to go the extra step and clearing it with Young allowed the musician to generate headlines all to do with his support of Democrat Bernie Sanders. Since candidacy announcements are generally not done to generate name recognition for one's opponents, I suggested that, hey, just go get the whiny artist's permission first, mmkay?

Bobby Jindal didn't take my advice. Jindal used the music of Buckwheat Zydeco during his presidential announcement and, well, ol' Buckwheat was not pleased.

Buckwheat's music was among several songs that played at the Pontchartrain Center in Kenner before Jindal and his supporters took the stage, Gambit Weekly reported while live tweeting the event. The zydeco musician replied to Gambit on his own Twitter page and said that Bobby Jindal using the music of Buckwheat and his band is "not cool at all."

Again, we'll go ahead and assume that the music was properly licensed because that always ends up being the case, but what's the point of letting the discussion of your presidential bid get side-railed because you chose to use the music of some guy who doesn't support you? All the campaign would have to do would be to clear the use with the artist and then all this doesn't happen. Is that really so hard? I mean, sure the musicians are being childish and petty (and have no legal claim), but that's the reality. If you don't want to give extra promotion to opponents, maybe find musicians who actually supports you.

And it's also the reality that all angry-musician-roads lead to Bernie Sanders, apparently.

He had much kinder words for U.S. Sen. Bernie Sanders, who strutted on stage to launch his presidential bid with Buckwheat's "Make A Change" playing in the background.

He said Sanders' use of the song was "tres bien."

And so we now have two separate GOP candidate announcements generating publicity for Bernie Sanders. To avoid a third, candidates need only take my advice on clearing the music they use with the artists.

According to Scholastic's 2012 press release, Storia (the DRMed ebook collection currently affected) allowed students and teachers to purchase ebooks and share them with up to 10 family members/students via its proprietary app. (The app is the DRM. Scholastic purchases don't work outside of it. To quote its now-vanished FAQs page: "Storia eBooks are designed with unique learning features and enrichments that make them readable only while using the Storia eReading app.") It also included enhanced content to encourage readers to dig deeper into unfamiliar subjects and allow teachers to connect with downloaded books via Smartboards and other computers. All in all, not a terrible product and one that comes from a particularly trusted name in academic publishing.

That's all coming to an end now. Scholastic has placed this notice on its website.

On September 1st, Scholastic is switching to what it calls a "streaming model." Readers and educators will have access to 2,000 titles, but they will no longer be allowed to own any of them. In fact, without an internet connection, they'll be unable to read them at all, a "feature" purchased ebooks didn't have. Instead, teachers and parents will pay a flat yearly fee to access these titles. Because of this switch, the license aspect of ebooks (something that's always present in digital goods) becomes explicit, rather than lurking in the background waiting to deny someone the privilege of selling or transferring an item they purchased (which Scholastic already prevented with its proprietary software).

At least Scholastic is being upfront about what's happening to people's purchases.

The switch to streaming means that eBooks you've previously purchased may soon no longer be accessible.

That's the bad news. You don't own what you buy, not if it's a license rather than a sale. See also: numerousotherexamples.

But Scholastic is at least trying to mitigate the damage. Some purchases will stay active in users' accounts if customers follow this one simple trick. (Sorry.)

You may be able to continue using your eBooks by making sure to open them on a bookshelf at least once by October 15.

Unfortunately, there's that troublesome word "may" stuck right in the middle of the damage control. Scholastic's site offers no odds on which books will still work and which purchased items will simply vanish. This is likely due to further licensing agreements behind the scenes -- those between Scholastic and authors/other publishers. (Scholastic handles book fair distribution for high-powered franchises like Harry Potter and Goosebumps.) Chances are, the bigger the title, the greater the likelihood of this maneuver not working. Just as Netflix streaming is 90% stuff no one wants to watch, a switch to an unlimited access streaming service will likely result in a.) the disappearance of titles whose upstream publishers are asking for increased licensing fees or b.) the increased upstream licensing fees pricing Scholastic out of many schools/parents' budgets.

But Scholastic is going further than most companies in the same position would, and doing it proactively (rather than waiting for the angry wisdom of the crowd to shame them into acting like they care).

Upon your request, we will refund the cost of all Storia eBooks you've purchased. Call Customer Service at 1-855-STORIA1 by August 1, 2015.

This in itself sets Scholastic ahead of many others who have simply issued the universal "licensing is out of our hands" shrug and pulled the plug on customers' purchases. So, kudos are in order for Scholastic (especially considering customers have more than a year to obtain their refunds), even if this switch to streaming sounds like it will benefit Scholastic more than its customers. A better decision would have been to keep both options. Educators -- which is who this new streaming service seems to be aimed at -- could take the subscription route while parents and kids could have kept their purchases (and potentially purchased even more ebooks). This one-size-fits-all approach takes books away from paying customers. A refund is nice, but having the right to keep your purchased items is even better.

[Postscript: One rep for Scholastic doesn't seem very interested in the public being made aware of this change outside of the splash page that now greets people looking to purchase Storia ebooks. Nate Hoffelder of the Digital Reader was approached by Kyle Good, Scholastic's Corporate Communications SVP, and asked why he wasn't going to remove his post on Storia after issuing a correction an earlier error. Good seems to believe this correction negated everything about Hoffelder's post (something Hoffelder admittedly stated before digging deeper into Storia's pivot to streaming) and asked in shocked Twitter tones why he hadn't.

This is Internet 101. Posts don't come down because of errors. Errors are corrected and acknowledged, but posts aren't simply removed because someone with a financial interest in the subject matter at hand thinks mistakes should result in disappearances. Storia's switch to streaming isn't completely terrible but it's certainly not a win for all of its customers. Ebooks you can only read with a solid internet connection border on useless. It may make sense in the educational market where the connection is almost guaranteed, but those outside of this system are simply losing their purchases. A refund helps, but it completely negate the damage.)

from the copyright-as-censorship dept

Another day, another example of copyright as censorship. Today's example comes from the RIAA. TorrentFreak has the story of how the RIAA has suddenly (for no clear reason) decided that ReelRadio's historical archive of radio airchecks is problematic. ReelRadio, created (and apparently last designed) in 1996, is a non-profit organization focused on preserving music radio history. Airchecks are demo reels, showing off the talents of radio announcers, and are a pretty useful and fascinating look into the history of radio. But, as far as the RIAA is concerned, ReelRadio is nothing more than a pirate site. This is despite the fact that ReelRadio actually has a license to play the music that is often incidentally included in airchecks.

“The RIAA has determined that our service fails to meet the requirements for ‘archived programs’, which must be at least five hours in duration and may not be made available for more than two weeks. The service must also display the Title, Artist and Album of each featured song, but only while the recording is being performed,” ReelRadio President Richard Irwin explains.

And then there's this:

“The RIAA insists that we obtain permission from the copyright owners of these old radio broadcasts. Many broadcasters understand the difficulty of this requirement, since nearly all radio stations have changed ownership, format, and call letters, many times over,” Irwin explains.

“Nevertheless, we are expected to provide the RIAA with an explanation of how we have permission from radio stations that no longer exist and copyright owners who have no interest in historic recordings of their property.”

It seems like ReelRadio would have an astoundingly strong fair use defense, but actually taking on the RIAA in court is likely prohibitively expensive (and distracting), though I'd hope that the organization could find some pro bono legal support. TorrentFreak argues that the RIAA may be on "solid ground" legally, but I don't see how this doesn't pass the fair use sniff test. The purpose and character of the use clearly falls into fair use. The nature of the work (an aircheck) also clearly leans towards fair use. The amount and substantiality taken may at first look like it leans against fair use, but the recent Westlaw ruling demonstrated that when it is "necessary" to copy the entire work for the intended purpose, that also supports fair use. It's possible this could weigh against ReelRadio, given that an argument could be made that the airchecks could be "scoped" (i.e., have all music removed), but that would certainly lessen the value of the archive. And, finally, the commercial impact clearly weighs (strongly) towards fair use.

Honestly, I'm curious exactly what kind of "license" the RIAA claims to have sold ReelRadio in the first place, because now it seems like the RIAA has been ripping off ReelRadio for years, demanding payments for something that doesn't need payment. Either way, ReelRadio appears to have taken down over 1,100 of those unscoped airchecks, basically deleting them from history. Thanks, RIAA, for helping to destroy culture and hide it from public view (potentially forever) yet again.